The HBS Blog

The first questions a person has to ask himself or herself after the “Eureka” moment are:

Is my idea patentable?

How do I pick the right patent writer?

Is it worth the time and cost of getting a patent?

Is there a low-cost way of getting high-quality patents done?

This blog will help answer these questions.

1. Is my idea patentable?

An inventor needs to ask three primary questions:

Improvement – Does my invention make a real improvement? - Patents demand an improvement over that which is already known in the space. If you apply for a patent on a car with no demonstrable improvement, the patent will be declined.

Non-Obvious – Is my invention non-obvious? Does my invention already exist? This is not an easy question to answer, as the “exact” invention may or may not exist. Google Patents and the USPTO website are good places for an inventor to start looking for their inventions. Oftentimes, one has to be creative in looking for “prior art” (references to the idea in the public domain). Keep in mind that terminology may change. You may see a diagnostic device, but others who have filed before you may have called it a detector. Also, for patent purposes, the lack of existence of your specific invention does not guarantee patentability, as an examiner may combine several pieces of art to arrive at your functional device and thus reject the claims of your application on the basis that your idea is an obvious outgrowth of existing knowledge. For example: if you tried to patent today a solar panel specifically designed to charge a computer, the examiner might claim that computer batteries are known and solar panels are known and., thus the combination of both is obvious and not patentable). Prior art searches often are performed by experts in IP law.

Enablement – One can file a “prophetic” patent application on things not yet done, but the embodiments must be fully described, and the science must make sense. In other words, one must be able to actually make it work. You cannot patent an idea, but you can patent a process or system.

2. How do I pick the right patent writer?

If you decide to file a patent application to cover a new invention, then your next big decision is with whom to file. The two most important traits for any patent attorney or patent agent are honesty and knowledge within the field.

The first quality – honesty – may seem obvious, but it is critical. Patent work and associated costs are fungible. You may need to file in multiple jurisdictions and/or you may need more or less claims. You want an honest patent preparer so that you are confident that whatever expenses you incur are real expenses. You do not want to be filing unnecessarily or filing bloated applications simply to help pay for the staff of the office which you use. You also want someone who can tell you that prior art exists and/or there are significant risks in getting the patent that you are sure that you deserve.

The second quality – knowledge in the field – is one of the greatest challenges is finding a patent preparer who understands the subject matter almost as well as the inventor himself/herself. You have been spending months, maybe even years, on this topic and you know the literature inside out. You also may be the only expert in your particular invention anywhere in the world. While one may not expect a patent attorney or the like to be such an expert, that person must be well-enough versed in your invention to allow him/her to understand the invention, compare it to the art, and write cogently claims and the full application. If the patent preparer does not fully understand the invention, then he/she may simply write a somewhat vacuous application that does not fully develop the concepts and embodiments of the invention. If a person does not understand a client’s invention, then he/she should suggest someone else to write the application.

3. Is it worth the time and cost of getting a patent?

The costs of filing a patent can be considerable and it typically takes 30 days to complete the patent process. To draft the patent application, file it and handle the prosecution (responding to the examiners communications) typically costs between $15,000 and $25,000, and if you apply for coverage beyond the US, say through a Patent Cooperation Treaty (PCT) filing, the costs can run tens of thousands of dollars more. So why file? Because the protection offered by a patent once issued provides a meaningful barrier to entry for would-be competitors. Patents can also assist in raising capital for a company as they are viewed as highly desirable by investment firms and angel investors, adding a level of security and lowering the risks associated with competition. Additionally, having patents in place also provides reasonable protection for discussions with possible strategic partners. As such, the costs are often justified. But is there a lower-cost solution?

4. Is there a low-cost way of getting high-quality patents done?

Yes. A company called PatentTank provides low-cost, high-quality patent writing.

Small entrepreneurial businesses can be broken into two categories: Low-margin businesses and high-margin businesses. You can analyze your best and most efficient path to attain your goals and choose your next business with greater understanding.

Often, the primary difference is in the DNA of the business model itself and is readily apparent to any business analyst, but many entrepreneurs ignore any analysis and go for their passion or convenience.

People go into low margin businesses because they love the type of work, or because they unexpectedly fell into it or because they followed in the footsteps of someone they admired, usually without consideration of the financial consequences.

Note these traditionally low margin businesses:

All types of home building contractors and sub-contractors, including all small plumbers, electricians, painters, flooring installers, framers, concrete finishers, tile installers, landscapers, blacktop companies too small for government jobs, etc.

Small one-location eateries of all types – less than 150 seating

Small private schools: Under 500 students enrolled on all levels of education, unless government funded.

Small doctor’s offices, in small towns with a low volume of patients

Small (one-of-a-kind) retail stores that charge reasonable prices, but not enough to pay the rent.

Small used car lots, in fact, used-anything lots.

Small hardware stores, and small retail stores.

Yet, exemptions to this rule abound! Times change, market size changes, the needs and desires of people change, and administrative and “tax” costs – in the broadest sense -- continue to rise without an accurate way to gauge them.

One thing is for sure: If you choose to engage in a low margin business your path to financial success (and longevity) will be more challenging than if you choose a high margin business. To put it another way, it’s just easier to succeed if you select a high margin business to engage in.

Common high margin businesses:

The easiest way to make a gazillion dollars in 2015 is to come up with an app for your smart phone that you seriously NEED. It’s not simple, but it’s easier than laying tile or mowing lawns.

Some individual high volume franchises: McDonald’s, Starbucks, etc. are real gold mines. If anyone you know owns one, go to work for them and, when they get old, offer to buy them out.

Get a law degree and take the bar: Big city lawyers work long hours at high rates, like $600 an hour PLUS a percentage of your winnings. PLUS you get the first pick at a lot of opportunities as a lawyer as you watch other people go under, or start up something with real potential.

Hedge funds: You’d be surprised at how easy it is to start a hedge fund. If you have investors ready to go, and you’re up for the ultimate challenge you can make it happen, with the right law firms.

Real estate developments that own the land your home sits on. If you control the maintenance fees, you’re set for life with just one property.

Condo management companies who can charge cost-plus and adjust their prices annually without resistance.

Jewelers – even small time / small town jewelers. Their mark-up is so sweet it’s hard to fail at this, even with one small shop in a small town, if you can develop a clientele. Parlay this into three large stores in a major metropolitan area and you’re set for life, and so are your grandchildren.

You Tube: The NEW Hollywood – even an amateur video can make gazillions. Just get your kid to bite his brother’s finger, how hard can that be? The key is, you have to capture it on video and post it to YouTube. Then ride the viral wave.

Realtors, even small ones who still get a percentage of the deal as commission and still get first opportunity to buy up the good stuff cheap, before anyone else even sees it. This is a GREAT career for someone who loves interaction with people, driving them around and making conversation. They usually end up rich, one way or another.

Most of today’s new entrepreneurs ignore the difference between high margin (HM) and low margin (LM) businesses when they start their first business.

Today’s entrepreneurs are attracted to the freedom to pursue their passion as a primary reason to start their own business. Second is their desire for the freedom to control their own schedule when they start their own business. Taking third place is the desire to make more money than working for someone else. And, lastly, in fourth place is the desire for an extraordinarily high monetary reward. From what we have seen over a period of 30+ years at HBS, most people starting a business want to do what they want, on their own time, that allows them to live well, as compared to working for someone else, IF they can make more money doing it.

Does that describe you? If so, there is a strong chance you’ll be going entrepreneurial some time in your future on your path to your ultimate success.

I can’t prove it but I’m betting there is an “entrepreneurial gene” that is a part of the makeup of a good percentage of the people of all cultures and countries. Individuals who desire to start a business will start a business because the gene is there. The decision as to what kind of business to start, and especially the analysis of the potential margin of the endeavor may determine how successful a person becomes, but is too seldom considered beforehand.

The Delaware series LLC is still generating a lot of interest, from clients that have multiple properties to clients that run a slew of different businesses. Those clients often ask, "How much does a Delaware series LLC cost?" The series LLC allows clients to save money by forming one LLC that is composed of any number of individual series of membership interests as opposed to several LLCs. Here's how it works, plus how much you can expect to pay each year to maintain a Delaware series LLC.

Each series is effectively treated as a separate entity, meaning the debts, liabilities, obligations, and expenses of one series cannot be enforced against another series of the LLC or against the LLC as a whole. Each series can hold its own assets, have its own members, conduct its own operations and pursue different business objectives, but remain insulated from claims of members, creditors, or litigants pursuing the assets of or asserting claims against another series. But the key factor in a series LLC is that it is treated as one entity for franchise tax and registered agent fee purposes, meaning that it is assessed one registered agent fee and one $300 annual franchise tax, rather than the separate tax and fee that would otherwise be applied individually to separate LLCs.

At first glance, the potential to save so much money on an annual basis would make the Delaware series LLC a no brainer to use for every business need. However, you should consider some disadvantages or challenges some of our clients have come across using a Delaware series LLC instead of using separate individual Delaware LLCs.

The biggest issue is the business bank account. Unfortunately, most banks are not able to accommodate the structure and allow a separate bank account for each and every series of the LLC.

The series LLC (as a legal entity) has also not been tested in the courts and many attorneys do not want to test the waters in the courts on an unproven structure. Even if a Delaware series LLC were properly operated with distinct records relating to the assets and liabilities of each series, a court in another jurisdiction could determine not to recognize the legal separation afforded under Delaware law.

Finally, many accountants are not familiar with the structure and are not able to provide advice on complicated tax issues.

To summarize, the Delaware series LLC structure is available, easy to form, and has the potential to be one of the most popular types of entities. It also is less expensive than forming separate LLCs, since annual savings on franchise taxes and registered agents fees can be significant. However, due to the difficulty in obtaining necessarily separate bank accounts and the uncertainty surrounding the courts acceptance of the structure, many clients are sticking with the proven structure of separate legal entities for each venture.

Feel free to reach out to me personally with any questions at brett@delawareinc.com, 800-345-2677 ext 6131, or DelawareInc via Skype.

Often when forming an LLC or a corporation, clients need to open a company bank account ASAP. This article is meant to explain the purpose of the banking resolution document, what is often included in it, and why it is beneficial. This will make it easier for you to be prepared when entering the bank to form an account. If you’re prepared, you’ll be surprised at how smooth the process can be.

What is a banking resolution document? The first meeting of the members (for an LLC) or of the board of directors (for a corporation) establishing the company often includes a “resolution” about banking details. Although a company may agree on several different types of resolutions during the meeting, the banking resolution is often one of the most commonly extracted from the general minutes of the meeting and used as a separate document. When opening a business bank account, the bank may often require a banking resolution. If you need a free banking resolution template, simply contact us by phone (800-345-2677), live chat, Skype (DelawareInc), or email. You can also download and print a free LLC banking resolution template or corporation banking resolution template now.

The banking resolution can be agreed upon at any meeting after the first meeting, or altered, as directed by the members or directors.

The banking resolution document is a document drafted and adopted by a company’s members or board of directors to define the relationship, responsibilities, and privileges that the members or directors have with respect to the company’s banking needs. To authenticate it as a stand-alone document, it is signed by the corporate secretary and stamped with the company’s corporate seal.

This document will often specify who may sign checks, borrow money, or make any banking decisions. It will also typically state the date and location of the meeting in which the resolution was adopted. The members or the board and the corporate secretary will sign off on any changes made to this document going forward. This document is typically not required to be filed with your registered agent or your state of formation. It is provided to the bank and then held internally within the company. If you have banking resolutions on file with the bank for a bank account or loan, be sure to update the bank on any changes in the company. The bank will sometimes require a new and original resolution when the board or officers change, or when renewing a loan.

Although most clients will have their banking resolutions prepared before going to the bank, some banks have a standard form that they require to be filled out. Each bank will be different in this respect. When applying for a loan, the bank will keep the banking resolutions on file along with the Certificate of Incorporation / Formation, and the bylaws / operating agreement.

Other common items needed when opening a bank account:

1. Certificate of Authority: The Certificate of Authority, also known as a foreign qualification, is obtained through registering your business as a foreign entity in the state in which the company is operating and/or banking. Most banks require the valid Certificate of Authority (achieved through qualification) in order to open an account to those who show record of filing outside that respective state. The bank account is the point where revenue is channeled and is considered part of a company’s operations. Since every state has their own requirements for foreign qualification, let Harvard take care of this detail for you! Harvard Business Services has specialists who can assist you with the entire process.

2. Certificate of Good Standing: The certificate of good standing, also known as a certificate of existence, is a certificate provided by the Delaware secretary of state’s office stating the company is current with all Delaware franchise taxes, filings, and registered agent services. Many banks will require a certificate of good standing when applying for a loan, line of credit, or opening a merchant account. Also, before signing a large contract, a company may be asked to present a certificate of good standing. Order a certificate of good standing now!

For any additional questions, please contact Devin at Harvard Business Services via phone (1-800-345-2677) or email.

When forming an LLC, Delaware is often the popular choice because it is known for having the strongest corporate law structure. Clients from all around the world reach out to Delaware to take advantage of the state’s benefits. It's possible to operate a Delaware company anywhere, which is why you can do business in Arkansas with a Delaware LLC.

When forming a business in Delaware, your company is considered domestic to Delaware and foreign to every other state. Generally the next step is to register as a foreign entity in the state in which you are operating. If you're planning on doing business in Arkansas with a Delaware LLC, certain steps will need to be taken. The process of registering your Delaware LLC as a foreign entity in Arkansas is called foreign qualification. This is how you obtain permission from Arkansas to operate there with a Delaware LLC.

Like all states, Arkansas has an application process and a state fee, and will also require additional documentation from Delaware. The additional documentation specifically required by Arkansas is a Delaware certificate of good standing. The certificate of good standing proves that your Delaware LLC has a legal existence, is up to date with all Delaware franchise taxes, and has a current registered agent in Delaware. Typically, a certificate of good standing will be accepted for up to 90 days from the date it is issued, but some legal transactions may require that you obtain the certificate on the same day as the filing.

As your Delaware registered agent, Harvard Business Services is happy to assist with your Arkansas foreign qualification. We will prepare the documentation, send it to you for signature, obtain the certificate of good standing, file the prepared paperwork with Arkansas, and even act as your Arkansas registered agent. The typical turnaround time is often about five business days.

If you are filing a company that happens to be in the medical professional service business, Arkansas will also require your certificate or card that was issued by the medical board. This will need to be sent by mail or fax before your filing is approved.

Once registered as a foreign entity in Arkansas, the state will have an annual reporting requirement. This annual report is due before May 1 each year. If we’re your Arkansas registered agent, we will notify you of this filing and help you file it in a timely manner.

If you would like Harvard Business Services to file your Delaware LLC and file as a foreign entity in Arkansas for you, or if you have any additional questions, please call 1-800-345-2677 x6130 or email devin@delawareinc.com.

Harvard Business Services, Inc. is a document filing service that provides general information. We cannot render legal or financial advice and your use of this site is subject to additional terms and conditions. HBS is not affiliated with Harvard University.